U.S. Supreme Court justice Stephen Breyer (Photo: Diego M. Radzinschi / NLJ)
Clarity and consensus seemed beyond the U.S. Supreme Court’s reach on March 31 as justices struggled to decide whether software and computer-dependent inventions are eligible for patents. During arguments in Alice Corp. Ltd. v. CLS Bank International, several justices seemed dubious, viewing such innovations as “abstract ideas” ineligible under federal law — and no more patentable just because they are implemented by computers.
At issue is a computer system developed and patented by the Australian company Alice Corp. that tracks, backs up and reduces the risk of global financial transactions. CLS Bank provides similar services. They sued each other over patents and have been in litigation since 2007.
The stakes are high but difficult to untangle, because major high-tech companies often find themselves on both sides of the issue — defending their own patents as solid while attacking their competitors’ patents as abstract, ineligible or too broad.
The high court chamber was packed with lawyers listening to the arguments and looking for clues to the justices’ thinking on an issue that has bedeviled the U.S. Court of Appeals for the Federal Circuit and the Supreme Court itself for years. The Supreme Court has dealt with issues of patent eligibility in three major recent cases, but failed to resolve the question or give clear guidance to companies and lower courts.
Justice Stephen Breyer, the most active questioner, said he had read all 42 briefs in the case and found them very helpful, “up to the point where I have to make a decision.” The court, he said, was “between Scylla and Charybdis,” not wanting to erase all patents but not wanting to allow so many that innovation would be stifled. — Tony Mauro
LONGEST VACANCY IN JUDICIARY FILLED
It took almost a decade, but the Senate last week filled a seat on the U.S. Court of Appeals for the Ninth Circuit that had become the longest vacancy in the judiciary. John Owens, a Munger Tolles & Olson partner in Los Angeles, was confirmed March 31 in a 56-43 vote. He fills a seat left vacant since 2004, when Judge Stephen Trott took senior status. Since then, California and Idaho have fought over which state’s senators got to propose a replacement for the seat — the federal judiciary’s version of a Hatfield-McCoy feud. Traditionally, circuit vacancies are replaced with a nominee from the same state from which his or her predecessor was nominated. The twist here: Trott was appointed to what had been considered a California slot on the Ninth Circuit, but chose to locate his chambers in Idaho for 25 years on the bench. Senate Democrats, led by Sen. Dianne Feinstein, D-Calif., pushed through the nomination over the objections of Idaho’s Republican senators — Mike Crapo and James Risch. — Todd Ruger
PRISON TERM IN LEAK CASE
Stephen Kim, a former U.S. Department of State contractor who admitted leaking classified information concerning North Korea’s military ­capabilities to a reporter, was sentenced on April 2 to 13 months in prison. Federal prosecutors and Kim’s lawyers agreed to the sentence as part of a plea deal, but they continued to clash until the end over the seriousness of Kim’s actions and the government’s decision to prosecute him.
Assistant U.S. Attorney G. Michael Harvey told U.S. District Judge Colleen Kollar-Kotelly that Kim was motivated “by his own ego and desire for professional advancement.” Kim’s attorney, Chadbourne & Parke partner Abbe Lowell, said his client made a “life mistake” and did not act for personal gain. Born in Seoul, Kim had a “keen understanding” of the fact that U.S. and foreign officials didn’t appreciate the threat North Korea posed, Lowell said. Kim said he was committed to rebuilding his life and contributing to the community. “I take full responsibility for my actions,” he said. — Zoe Tillman
CONTEMPT HEARING SET
The House Oversight and Government Reform Committee will consider a contempt of Congress resolution on April 10 for a former Internal Revenue Service official who refused to answer questions during a congressional hearing.
Lois Lerner, represented by William Taylor III of Zuckerman Spaeder, has twice invoked her Fifth Amendment right against self-incrimination when facing questions about accusations the IRS unfairly targeted certain political groups that applied for tax-exempt status. It was Lerner’s statement at a May 22 hearing — made before she invoked the Fifth Amendment, later at the hearing — that has raised legal questions.
Chairman Rep. Darrell Issa, R-Calif., said in a statement that Taylor told the committee that Lerner was ready to testify, but subsequently rescinded that offer. “Americans expect accountability and want Congress to do all it can to gather relevant evidence about what occurred and who was responsible so that this never happens again,” Issa said. “Ms. Lerner’s involvement in wrongdoing and refusal to meet her legal obligations has left the committee with no alternative but to consider a contempt finding.” — Todd Ruger
FEDS SETTLE ‘OCCUPY’ CASES
The federal government has agreed to pay $4,000 to resolve a lawsuit brought by a man who was arrested for refusing to remove his “Occupy Everywhere” jacket inside the U.S. Supreme Court. The government also settled, for $10,000, a suit in which a man, Anthony Michael Patterson, alleged he was unlawfully arrested for using profanity.
In the jacket case, the plaintiff, Fitzgerald Scott, represented by solo practitioner Jeffrey Light, was appealling the dismissal of his suit. Scott was arrested for unlawful entry under District of Columbia law, but the charge was based on federal law that governs expressive activity at the high court. U.S. District Judge Beryl Howell last year struck down the federal law in an unrelated case, Hodge v. Talkin.
The U.S. Department of Justice is appealing Howell’s decision; the case is pending in the U.S. Court of Appeals for the D.C. Circuit. “Now that the statute has been invalidated — and the D.C. Circuit will rule on that — there wasn’t a much of a point to continue to litigate the constitutional issue of the proper application of the statute,” Light said about Scott’s case. Light also represented Patterson. A judge in that case had declined to dismiss claims against three police officers. — Mike Scarcella
SMALL FIRMS, BIG MARKETING
Midsize law firms seem prepared to boost investments in marketing this year, according to a white paper published by NLJ and Legal Times affiliate ALM Legal Intelligence. More than half of the midsize firms surveyed said they were considering bolstering their marketing budgets in 2014 by as much as 5 percent. None planned to reduce spending. By comparison, almost half said their marketing budgets held steady during 2013 compared to 2012.
“White shoe, wingtip or even sneakers: No matter how illustrious the firm’s profile or its key clients, law firms, much like their corporate brethren, can no longer survive a passive business strategy,” the report concludes. “Marketing is now a mandatory strategic and very deliberate tool, if your firm wants to thrive and survive.”
The March survey culled responses from leaders, including marketing directors, at 90 small and midsize firms. — Katelyn Polantz
FIGHT REVIVED OVER DOJ DOCS
A federal trial judge in Washington “drastically understated” the public’s interest in understanding how the FBI carries out investigations and how the U.S. Department of Justice exercises prosecutorial authority, the U.S. Court of Appeals for the D.C. Circuit ruled last week. The D.C. Circuit said DOJ couldn’t categorically refuse to release documents about the FBI’s investigation of former House Majority Leader Tom DeLay.
The investigation was part of the public corruption probe involving convicted lobbyist Jack Abramoff. Shortly after DeLay announced in 2010 that DOJ wouldn’t bring charges, Citizens for Responsibility and Ethics in Washington (CREW) filed a Freedom of Information Act request for information on the investigation. U.S. District Judge Richard Leon agreed with the Justice Department that privacy interests and the existence of still pending investigations outweighed public interest in the information CREW wanted.
D.C. Circuit Judge Karen LeCraft Henderson, writing for the unanimous three-judge panel, said Leon got it wrong. DOJ could ultimately prove that certain information should stay secret once the case was sent back to Leon, she wrote, but a “categorical rule” keeping all of the requested information exempt from disclosure was “inappropriate.” — Zoe Tillman
GONZALES NAMED DEAN
Former U.S. Attorney General Alberto Gonzales has been named dean of Belmont University College of Law, a private Christian school that opened in Nashville in 2011. Gonzales, a faculty member since 2012, will replace founding dean Jeff Kinsler in June.
“With [Kinsler's] decision to transition to full-time teaching, I join the College of Law students, staff and faculty in welcoming Judge Gonzales to his new role as dean,” provost Thomas Burns said. “His valuable expertise and classroom approach have been applauded repeatedly by our students, and everyone in the college is excited about the leadership he will bring as dean.” In addition to his teaching, Gonzales is of counsel to Nashville law firm Waller Lansden Dortch & Davis, but will resign that position when he becomes dean. — Karen Sloan